World Wide Street Preachers Fellowship v. Town of Columbia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-30294
))))))))))))))))))))))))))
WORLD WIDE STREET PREACHERS FELLOWSHIP; KENNETH COLEMAN, SR.
Plaintiffs–Appellants
v.
TOWN OF COLUMBIA
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
No. 3:05-CV-0513
Before KING, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant World Wide Street Preachers Fellowship
(“SPF”) and one of its members Plaintiff-Appellant Kenneth
Coleman (“Coleman”) (collectively, “Plaintiffs”) have chosen in
recent years to demonstrate alongside various roads in Defendant-
Appellee Town of Columbia (“Columbia”). Following several
encounters with Columbia police officers, one SPF member was
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
arrested and other demonstrators were threatened with arrest.
This lawsuit followed. On cross-motions for summary judgment,
the district court held that Plaintiffs’ First Amendment rights
had not been violated by Columbia’s actions and that Plaintiffs
were not entitled to attorneys’ fees. Plaintiffs appealed the
adverse decision, and we now REVERSE the district court’s grant
of Columbia’s motion for summary judgment, AFFIRM the district
court’s denial of Plaintiffs’ motion for summary judgment, and
REMAND for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
SPF is an organization of street preachers. In recent
years, SPF has demonstrated several times in Columbia, Louisiana.
As shown by the DVDs of their activities in Columbia, SPF’s
demonstrations consist of members standing on the side of a road
holding up signs with one or two members speaking into
bullhorns.1 Many of the signs speak of the consequences of sin
and the need for repentance. Some, however, are critical of
abortion, homosexuals, and women pastors. Of significance to
this case, some of SPF’s anti-abortion signs contain pictures of
aborted babies. These demonstrations appear to be attended by
anywhere from five to fifteen SPF members.
Plaintiffs carried out one such demonstration on December
27, 2003, at the southwest corner of the intersection of Highway
1
SPF recorded portions of their demonstrations in Columbia
and have entered the DVDs of those demonstrations into evidence.
2
165 and Church Street in Columbia. Plaintiffs called the police
when one of the demonstrators was almost hit by a car. Officer
Robert Miles (“Miles”), the Assistant Police Chief, spoke with
SPF member Allen Russell (“Russell”) about the situation. During
their conversation, Miles made the following statements:2
• We don’t mind you all holding up the signs but do
you have to hold up those . . . pictures?
• If it’s offensive to one person, that makes it
wrong.
• It’s just like disturbing the peace.
• It’s not the fact that you’re out here. It’s the
fact that your signs are offensive.
Miles, however, indicated that he agreed with Plaintiffs’ anti-
abortion message. He also repeatedly asked that the SPF members
remain behind the white fog line on the edge of the highway.3
Plaintiffs continued with their demonstration and were not
required to put away their signs.
Several SPF members returned to the same location on
December 30, 2003, although it is unclear whether Coleman was
with them. Columbia Chief of Police Doug Crockett requested that
the SPF members put away their signs until he could determine
2
Plaintiffs assert the statements were made by Miles, as
opposed to another officer at the scene; however, the DVD does
not reflect which officer made the statements. Columbia has not
contested that the statements were made by Miles on appeal.
3
The evidence does not indicate whether Plaintiffs had
actually crossed over the white line or whether Miles was simply
asking them to be cautious.
3
whether their actions violated the law. The SPF members refused,
and they were permitted to proceed with their demonstration.
When the southwest corner of the intersection of Highway 165
and Church Street underwent excavation, Plaintiffs moved their
demonstrations to the southeast corner. A United Methodist
Church (“United Methodist”) is located on and owns the land in
this corner of the intersection. In this area, Highway 165 is
bordered by a white fog line, followed by a paved shoulder, and
then an area of dirt and grass. The district court found, and it
has not been contested on appeal, that the area of dirt and grass
is United Methodist’s property, while the highway and paved
shoulder are the property of Louisiana. What is contested on
appeal is the width of the paved shoulder--Plaintiffs contend it
is eight feet wide, but the district court stated it is only two
feet wide.
A sidewalk runs along Church Street in front of United
Methodist. Plaintiffs demonstrated on this sidewalk on May 15,
2004. One United Methodist parishioner became so enraged by
Plaintiffs’ speech that she started a minor physical altercation
with an SPF member. The police became involved, but there is no
evidence that anyone was ever charged with any sort of crime in
connection with the incident.
Things came to a head on February 12, 2005, when Plaintiffs
were demonstrating along Highway 165 in the southeast corner of
the intersection with Church Street. State Trooper John Wiles
4
(“Wiles”) passed by and contacted the Columbia police department.
He said that he witnessed several SPF members either standing on
the white fog line or on the highway itself and asked that the
Columbia police move the demonstrators back from the road. The
police department had also previously received complaints from
United Methodist about Plaintiffs standing on its property.
Several Columbia police officers, including Miles,
responded. The DVD of the events that followed is only a few
minutes long and begins after the police officers arrived at the
scene. There appear to have been fewer than ten demonstrators
that day, but one was holding a sign depicting an aborted baby.
Some demonstrators were standing on United Methodist’s property,
although it is unclear if they had been standing there the entire
time or had moved there after three police cars parked on the
shoulder.
Miles told the demonstrators that they had five minutes to
get off the property and leave. When Russell began to argue with
him, Miles stated, “This is the church property. They don’t want
you here. And this is state’s property. They don’t want you
here.” He also stated, “You are disrupting everybody.” When
Russell continued to argue that they had a right to be on public
property, Miles arrested him. It appears Russell may have been
standing on the shoulder at that time, but the DVD evidence is
not conclusive. While arresting Russell, Miles turned to the
remaining demonstrators and asked “All of y’all want to go, too?”
5
Miles further told the demonstrators that “[y]ou cannot picket,
boycott on State property or right-of-way” and to “[p]ut that
sign away and y’all get off this parking lot or I will arrest
every one of you.” The demonstrators then left.
Miles’s affidavit of probable cause for Russell’s arrest
states that Miles “approached the group and advised them that
they were causing a disturbance with their actions, and pictures
and that [sic] were on the state right of way, and that they
needed to leave the area . . . The group didn’t have any permit
to be on the right of way, and they were to [sic] close to the
flashing red beacon (red light) . . . .” Russell was charged
with resisting an officer (LA. REV. STAT. ANN. § 14:108, the
“Resisting statute”), stopping or standing in specified areas
(LA. REV. STAT. ANN. § 32:143, the “Standing statute”), and
demonstrating without a permit (LA. REV. STAT. ANN. § 14:326, the
“Permit statute”). No mention is made of what happened to these
charges, but Russell spent two days in jail as a result.
Plaintiffs’ attorneys wrote several letters to Columbia
officials arguing that the police officers’ actions violated
Plaintiffs’ First Amendment rights. They asked for an apology,
damages, attorneys’ fees, and a guarantee that Columbia would let
Plaintiffs peacefully demonstrate in the future. Columbia’s
attorneys responded that Plaintiffs had peacefully demonstrated
before and were welcome to return and demonstrate in accordance
with reasonable time, place, and manner restrictions. Columbia
6
noted that, on February 12, 2005, SPF members were on private
property, in a construction zone, and within twenty feet of a
traffic light. Columbia further asserted that a demonstration at
that same location would require a permit pursuant to Louisiana
law.
Dissatisfied with this response, Plaintiffs filed suit in
federal court against Columbia on March 22, 2005, bringing claims
under 42 U.S.C. § 1983. Plaintiffs asserted that Columbia’s
actions violated their First Amendment rights to free exercise of
religion, free speech, and free assembly. They sought nominal
damages, declaratory relief that the application of the
Resisting, Standing, and Permit statutes was unconstitutional,
injunctive relief that would enable them to continue
demonstrating, and attorneys’ fees under 42 U.S.C. § 1988. On
March 23, 2005, the district court entered a Temporary
Restraining Order, prohibiting Columbia from interfering with
Plaintiffs’ First Amendment rights and setting a preliminary
injunction hearing for April 1, 2005.
On May 5, 2005, the district court entered a preliminary
injunction that the three statutes under which Russell was
arrested did not apply to SPF’s activities. However, the
district court found that two other statutes (LA. REV. STAT. ANN.
§§ 14:97 & 48:21) could possibly apply to Plaintiffs’ conduct.
Section 14:97 prohibits obstructing a highway of commerce, and
section 48:21 defines the functions of the Louisiana Department
7
of Transportation and Development to include maintaining the
public highways. The district court found that these two
statutes prevented Plaintiffs from establishing an unfettered
right to demonstrate on the corner of their choosing. Therefore,
while the district court enjoined Columbia from enforcing the
three inapplicable statutes against Plaintiffs and from
unconstitutionally interfering with Plaintiffs’ First Amendment
rights, the district court determined that Plaintiffs had not met
their burden of demonstrating a likelihood of success on the
merits of their First Amendment claim, because their conduct
could be regulated by sections 14:97 and 48:21.
On May 21, 2005, Coleman and Russell, along with others,
preached and held signs on the sidewalk along Highway 165 near
the intersection of Pearl Street. The police told them that they
could not protest within twenty-five feet of the intersection,
nor could they stand in the blocked-off portion of the
intersection, despite the fact that other pedestrians used those
areas.4 According to Columbia, the police were simply trying to
move the protesters back a “mere few feet” due to unusually heavy
traffic that day as a result of a local festival. Plaintiffs
assert they were ordered to move forty feet away. When the SPF
members refused to move, Coleman was arrested for violating the
4
The DVD shows that Pearl Street had been closed down on
one side to facilitate Columbia’s Riverboat Festival, permitting
pedestrians to walk down Pearl Street without interrupting
traffic.
8
Resisting Statute by “congregation with others on a public street
and refusal to move on when ordered by the officer.” See LA.
REV. STAT. ANN. § 14:108. Russell was arrested for assaulting a
police officer when he was forcefully removed from standing near
the intersection. There is no mention made of what happened to
these charges; however, in their briefing before this court,
Plaintiffs assert that the May 21 event is not part of the
instant lawsuit. We include mention of it here because the
district court relied on the events of May 21 in its summary
judgment order.
On January 25, 2006, the district court entered its order on
the parties’ cross-motions for summary judgment. The district
court determined, after reviewing the DVD of the May 21, 2005
demonstration, that the officers’ actions were taken only to move
the Plaintiffs back from the highway for safety reasons and were
not motivated by Plaintiffs’ speech. The district court held
that the officers were permitted to take these actions based on
sections 14:97 and 48:21, the two statutes the district court
found applicable in its preliminary injunction ruling.
Therefore, the district court concluded that Plaintiffs had not
established a First Amendment violation. Consequently, the
district court dismissed Plaintiffs’ case and dissolved the
preliminary injunction. The district court also ruled that
Plaintiffs’ partial victory with respect to the preliminary
injunction did not entitle them to attorneys’ fees pursuant to 42
9
U.S.C. § 1988. Plaintiffs have appealed.
II. JURISDICTION
We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1291, because Plaintiffs are appealing the final judgment of
the district court. See Morris v. Equifax Info. Servs., L.L.C.,
457 F.3d 460, 464 (5th Cir. 2006) (acknowledging appellate
jurisdiction under § 1291 to review grant of summary judgment).
III. STANDARD OF REVIEW
We review a district court’s order granting summary judgment
de novo. Id. Summary judgment is appropriate when, after
considering the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits, “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th
Cir. 2006). A genuine issue of material fact exists when the
evidence is such that a reasonable jury could return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In considering a summary judgment motion, all
inferences drawn from the underlying facts must be viewed in the
light most favorable to the non-movant. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
IV. DISCUSSION
On appeal, Plaintiffs assert that the evidence shows that
10
Columbia engaged in content-based discrimination against them
when its police officers threatened Plaintiffs with arrest on
February 12, 2005. Plaintiffs argue that the district court
erred by not applying the correct standard to their First
Amendment claims and in failing to even reach the constitutional
issues. Columbia counters that there is no evidence of content-
based discrimination and that its officers’ actions were
appropriate.
Before we begin our analysis, we first make clear the
conduct at issue in this case. Because Plaintiffs state in their
briefing that the May 21, 2005, events are not part of this
lawsuit, we concern ourselves only with the events on February
12, 2005. On that day, the evidence, taken in the light most
favorable to Plaintiffs, shows that Plaintiffs’ First Amendment
rights were restricted when Columbia’s police officers threatened
to arrest Plaintiffs if they did not leave the demonstration.5
“The threat of sanctions may deter [the exercise of First
5
We do not consider Russell’s arrest to be a First
Amendment injury to Plaintiffs, because SPF, as an organization,
lacks standing to seek relief for injuries to a single member.
See Self-Ins. Inst. of Am., Inc. v. Korioth, 53 F.3d 694, 695-96
(5th Cir. 1995) (“Though an association may have standing to seek
‘a declaration, injunction, or some other form of prospective
relief’ on behalf of its members, it does not enjoy standing to
seek damages for monetary injuries peculiar to individual members
where the fact and extent of injury will require individualized
proof.”); O’Hair v. White, 675 F.2d 680, 692 (5th Cir. 1982) (en
banc) (finding organization lacked standing to pursue one
member’s due process and equal protection claims or member’s
request for an injunction specific to her).
11
Amendment rights] almost as potently as the actual application of
sanctions.” NAACP v. Button, 371 U.S. 415, 433 (1963); see also
Aebisher v. Ryan, 622 F.2d 651, 655 (2d Cir. 1980) (“Where the
use of coercive power is threatened, First Amendment rights may
be violated by the chilling effect of governmental action that
falls short of a direct prohibition against speech.”). Further,
Columbia does not dispute that Plaintiffs were exercising their
free speech, religion, and assembly rights by demonstrating that
day. Plaintiffs have, thus, created a fact issue that their
First Amendment rights were restricted on February 12, 2005.
Therefore, we must now determine whether such a restriction was
in violation of the First Amendment by considering the
constitutional standards under which we measure Columbia’s
conduct.
12
A. First Amendment Standards
Plaintiffs have brought claims of free speech, free exercise
of religion, and free assembly. Although not identical, the
constitutional standards for speech, religion, and assembly are
similar. Turning first to freedom of speech, we note that the
Supreme Court has set forth two separate tests to determine
whether a governmental restriction on speech violates the First
Amendment--strict scrutiny and intermediate scrutiny. The key to
deciding which test to apply to the government’s conduct is
whether the restriction was content-based, in which case the
strict scrutiny test applies, or content-neutral, in which case
we apply intermediate scrutiny.
Strict scrutiny, as applied to content-based restrictions of
speech, requires the government to show that the restriction at
issue is narrowly tailored to promote a compelling governmental
interest. United States v. Playboy Entm’t Group, Inc., 529 U.S.
803, 813 (2000). If a less restrictive alternative is available,
the governmental restriction cannot survive strict scrutiny. See
id. Intermediate scrutiny, on the other hand, requires the
government to demonstrate that: (1) the restriction is within the
constitutional power of the government; (2) the restriction
furthers an important or substantial governmental interest; (3)
the governmental interest is unrelated to the suppression of free
expression; and (4) the incidental restriction on First Amendment
freedoms is no greater than is essential to the furtherance of
13
that interest. United States v. O’Brien, 391 U.S. 367, 377
(1968); Horton v. City of Houston, 179 F.3d 188, 194 (5th Cir.
1999). Courts often shorten this inquiry into whether the
restriction is narrowly tailored to serve a significant
government interest and leaves open alternative channels of
communication. See Horton, 179 F.3d at 194. In the context of
intermediate scrutiny, “narrowly tailored” does not require that
the least restrictive means be used. Ward v. Rock Against
Racism, 491 U.S. 781, 798 (1989). Rather, so long as the
restriction promotes a substantial governmental interest that
would be achieved less effectively without the restriction, it is
sufficiently narrowly tailored. Id. at 799.
The principal inquiry in determining whether a restriction
is content-based or content-neutral, and thus whether strict or
intermediate scrutiny should be applied, is whether the
government has adopted the restriction of speech because of the
government’s disagreement with the message conveyed. Id. at 791.
“A regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect
on some speakers or messages but not others.” Id. (holding a
regulation is content-neutral as long as it is justified without
reference to the content of the regulated speech). Consequently,
in order to determine which test should be applied to Columbia’s
restriction of Plaintiffs’ speech--strict scrutiny or
14
intermediate scrutiny--we must decide whether Columbia’s
restriction was based on the content of Plaintiffs’ speech or
rather was content-neutral.
The constitutional tests for whether governmental action
unconstitutionally infringes on the free exercise of religion and
freedom of assembly are similarly dependent on whether the
restriction was motivated by the nature of the conduct that is
restricted. With respect to the free exercise of religion, if
the object of a law is to infringe upon or restrict practices
because of their religious motivation, the law is invalid unless
it is justified by a compelling interest and is narrowly tailored
to advance that interest. Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 533 (1993). In other words, a
restriction of religious practices because of their religious
nature must survive strict scrutiny. See id. at 546. However, a
law that is neutral and of general applicability need not be
justified by a compelling governmental interest, even if that law
has the incidental effect of burdening a particular religious
practice. Id. at 531. Thus, the motivation for the restriction
on the exercise of religion must be established before the
restriction can be legally analyzed.6
Likewise, the Supreme Court has held that an infringement on
6
Although the free exercise test is typically framed in
terms of analyzing a “law,” its analysis can be applied to
Columbia’s actions as a governmental authority.
15
the right to associate for expressive purposes can be justified
by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved
through means significantly less restrictive of associational
freedoms. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); see
also La. Debating & Literary Ass’n v. City of New Orleans, 42
F.3d 1483, 1498 (5th Cir. 1995) (applying strict scrutiny to
restriction on associational freedoms). Therefore, the
restriction on freedom of assembly must also be unrelated to the
purpose of the assembly.
Given the above tests for violations of the First Amendment
rights of free speech, free exercise of religion, and free
assembly, it is clear that the motivation for the restriction at
issue is key to determining which constitutional standard should
be applied. For purposes of this opinion, we will use the terms
“content-based” and “content-neutral” to describe the possible
motivations of Columbia’s officers, although the tests for free
exercise of religion and free assembly do not generally use those
terms. Once we determine whether the restriction was content-
based or content-neutral, we will know which constitutional
standards to apply to Columbia’s conduct. We now consider the
reasons set out by Columbia to explain its officers’ actions and
whether Plaintiffs have created a genuine issue of material fact
that those were Columbia’s true reasons for restricting
16
Plaintiffs’ rights.7
B. Whether Columbia’s Actions Were Content-Based or Content-
Neutral
Numerous content-neutral reasons have been put forward by
Columbia to justify its police officers’ actions on February 12,
2005. Russell was arrested for violating the Resisting,
Standing, and Permit statutes, so those statutes could provide a
reason to threaten Plaintiffs with arrest. During litigation,
Columbia argued that sections 14:97 and 48:21 of the Louisiana
Revised Statutes provided a justification for its actions.
Trespassing and general safety concerns have also been alleged.
If the evidence shows that these content-neutral reasons were
Columbia’s actual reasons, then we may apply intermediate
scrutiny. If, however, Plaintiffs have created a genuine issue
of material fact as to whether these asserted reasons were
Columbia’s actual reasons or whether Columbia acted because of
the content of Plaintiffs’ demonstration, we must reverse and
remand for a determination of Columbia’s true motivations. Only
then will it be clear whether strict scrutiny or a lesser form of
7
We note that municipal liability under 42 U.S.C. § 1983
must be premised on the policy or custom of the municipality or
the act of a policymaker. See Pembaur v. City of Cincinnati, 475
U.S. 469, 480-81 (1986); Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978). The parties have not raised or briefed this
issue; therefore, our focus in this case is on the actions of the
officers, which is what the parties have argued. But see Collins
v. City of Harker Heights, 503 U.S. 115, 123 (1992) (stating that
a municipality is not subject to liability under § 1983 by way of
respondeat superior).
17
scrutiny applies.
1. Resisting, Standing, and Permit Statutes
We turn first to the three statutes--Resisting, Standing,
and Permit--that the district court determined were inapplicable
to Plaintiffs’ conduct. Columbia has not contested on appeal the
district court’s conclusion that the statutes were inapplicable;
however, we emphasize the fact that, as shown below, even taking
the officers’ allegations as true, Plaintiffs’ conduct could not
have violated the statutes.
Section 14:108, the Resisting statute, provides that it is
an offense to intentionally interfere with an officer making a
lawful arrest, seizing property, or serving process. Louisiana
courts have limited the reach of this statute to interference
with those actions alone. State v. Huguet, 369 So. 2d 1331, 1333
(La. 1979); State v. Joseph, 759 So. 2d 136, 140 (La. Ct. App.
2000); State v. Green, 706 So. 2d 536, 539 (La. Ct. App. 1997).
Because Plaintiffs were not interfering with an arrest, seizure
of property, or service of process, the Resisting statute could
not have been applied to their actions.8
The Standing statute, section 32:143, states that “[n]o
person shall stand, or park a vehicle” within fifteen feet of a
fire hydrant, within twenty feet of a crosswalk, or within twenty
8
Although the police officers did arrest Russell, the DVD
does not reflect, and Columbia does not contend, that Plaintiffs
interfered with that arrest in any way.
18
feet upon the approach to any stop light. Although Plaintiffs
were “standing” within these areas, “stand” is defined in section
32:1(71) as temporarily halting a vehicle. Therefore, the
statute is inapplicable to human beings, such as SPF members, who
are standing in these areas.
Finally, the Permit statute, section 14:326, requires groups
to obtain a permit before staging a parade, march, or
demonstration. However, the statute only applies to parishes
with populations of at least 450,000. LA. REV. STAT. ANN.
§ 14:326(C). Caldwell Parish, in which Columbia is located,
clearly did not meet this population threshold; therefore,
Plaintiffs were not required to obtain a permit before
demonstrating in Columbia.
As a result, Plaintiffs’ conduct, as alleged by Columbia’s
police officers, would not have resulted in the violation of any
of these statutes. Consequently, there is a genuine issue of
material fact as to whether the officers were motivated to
restrict Plaintiffs’ First Amendment rights on the basis of these
statutes. By this we are not saying that there is a fact issue
regarding the First Amendment anytime an individual’s rights are
restricted by application of a content-neutral statute and the
individual is subsequently determined to be not guilty of
violating that statute. Nor are we holding that it is
appropriate to assume the officers were motivated by the content
19
of Plaintiffs’ demonstration just because Plaintiffs were not in
violation of the statutes. Rather, we are simply stating that
the absence of any allegations by the officers that would have
supported a finding that Plaintiffs were violating the Resisting,
Standing, and Permit statutes creates a genuine issue of material
fact as to whether the officers were actually motivated to
restrict Plaintiffs’ demonstration on the basis of those
statutes.
2. Sections 14:97 and 48:21
Columbia was able to successfully defend its actions on
February 12, 2005, to the district court on the basis of sections
14:97 and 48:21 of the Louisiana Revised Statutes. Section 14:97
makes simple obstruction of a highway punishable by a fine,
imprisonment, or both. Simple obstruction is defined as “the
intentional or criminally negligent placing of anything or
performance of any act on any railway, railroad, navigable
waterway, highway, thoroughfare, or runway of an airport, which
will render movement thereon more difficult.” Section 48:21
states that the functions of the Louisiana Department of
Transportation and Development are “to study, administer,
construct, improve, maintain, repair, and regulate” the roads in
Louisiana.
We make no determination whether Plaintiffs violated either
of these two statutes or whether the district court correctly
20
interpreted them. We do, however, hold that there is no evidence
that these statutes provided the basis for Columbia’s actions on
February 12, 2005. In its order on the cross-motions for summary
judgment, the district court recognized that these statutes were
“not relied upon to remove” Plaintiffs. (01/25/06 Dist. Ct.
Ruling at 8). Instead, these statutes were first advanced by
Columbia after litigation commenced. The district court erred in
using these statutes to create a content-neutral justification
for Columbia’s actions on February 12, 2005, without any evidence
that Columbia’s police officers actually relied on those statutes
on that day. Therefore, Columbia’s motivation for restricting
Plaintiffs’ First Amendment rights remains a genuine issue of
material fact.
3. Trespassing
Columbia also asserts that Plaintiffs were trespassing on
February 12, 2005. Miles did state on the DVD that Plaintiffs
were not welcome on either United Methodist’s property or the
state’s property, indicating that he believed Plaintiffs were
trespassing. To the extent Plaintiffs were standing on United
Methodist’s property, Plaintiffs do not contest that they could
be removed for trespassing. See LA. REV. STAT. ANN. § 14:63. The
same does not hold true for the paved shoulder, however.
Columbia points to no law that makes it a trespass to stand on
state property next to a highway. In its opinion on Plaintiffs’
21
preliminary injunction motion, the district court determined that
the paved portion of Highway 165 was “‘the archetype of a
traditional public forum.’” (05/05/05 Dist. Ct. Op. at 9)
(citing Frisby v. Schultz, 487 U.S. 474, 480 (1988)).
Restrictions on demonstrations on the paved shoulder are thus
subject to analysis under the strict or intermediate scrutiny
standards, depending on whether the restriction was content-based
or content-neutral. See Frisby, 487 U.S. at 481.9 Therefore,
whether Columbia’s restrictions on Plaintiffs’ demonstration were
content-based or content-neutral is still a fact question.
4. General Safety Concerns
The district court stated in its order below that, after
reviewing the DVD of the May 21, 2005, incident, “the Court
concludes that the officers were not prohibiting the [SPF
members’] demonstration, but again, merely trying to move the
[SPF members] away from the intersection for the safety of
drivers as well as the [SPF members].” (01/25/06 Dist. Ct.
Ruling at 9). This conclusion was erroneous for several reasons.
First, the motivations for the officers’ actions on May 21,
2005, say little, if anything, about the officers’ motivations on
9
Although not necessary to our decision, we note that the
DVD of the February 12, 2005, incident shows police cars parked
on the paved shoulder of Highway 165. As the cars were more than
two feet wide, this evidence appears to conflict with the
district court’s finding that the paved shoulder is only two feet
wide. The DVD suggests that the width of the paved shoulder
might vary, but it is, at the very least, a fact issue.
22
February 12, 2005. Indeed, it is not clear that the same
officers were involved in each incident.
Second, the DVD is far from conclusive evidence that the
officers were only concerned about the safety of drivers and
Plaintiffs on May 21. The DVD shows that the officers claimed to
be relying on state law when they required Plaintiffs to stand
over twenty-five feet from the intersection of Highway 165 and
Pearl Street. However, the district court had already ruled that
the Standing statute, section 32:143, did not apply to
Plaintiffs’ conduct and had preliminarily enjoined Columbia from
enforcing the statute against Plaintiffs. Columbia has offered
no other justification for the twenty-five foot rule. Further,
Coleman was arrested for violating section 14:108, the Resisting
statute, but, again, there is no evidence on the DVD that he
interfered with an officer making an arrest, seizing property, or
serving process. See Huguet, 369 So. 2d at 1333. The district
court had also enjoined the use of that statute against
Plaintiffs. Finally, it is a fact question whether the traffic
conditions were hazardous enough to require Plaintiffs to refrain
from standing near the intersection. Indeed, other pedestrians
were permitted to walk through the areas in which Plaintiffs
wished to stand. Therefore, the police officers’ motivations on
May 21, 2005, are far from clear.
Columbia tries to analogize its case to one considered by
the Eighth Circuit in Frye v. Kansas City Missouri Police
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Department, 375 F.3d 785 (8th Cir. 2004). In Frye, the
plaintiffs demonstrated against abortion by standing on the side
of a road holding signs, some of which contained pictures of
mutilated fetuses. Id. at 788. Following complaints from
drivers, the police gave the plaintiffs the choice of either
relocating to a different portion of the road or taking down the
graphic signs. Id. Several demonstrators were arrested under
the loitering ordinance when they refused to obey. Id. The
Eighth Circuit found no First Amendment violation. The court
stated that the officers’ actions were not motivated by the
content of the signs, but rather out of a concern for public
safety. Id. at 790 (holding that the plaintiffs’ message was not
suppressed, but only regulated as to time, place, and manner).
The facts in the instant lawsuit are distinguishable from
those in Frye. First, it is unclear how the Eighth Circuit
arrived at the conclusion that the officers’ actions were not
motivated by the content of the signs; therefore, the evidence
may be markedly different. Second, the officers in Frye did not
completely stop the demonstration, but permitted it to continue
in a different place or with different signs.10 Here, there is
no evidence that on February 12, 2005, Columbia gave Plaintiffs
any option other than to stop the demonstration entirely. If
10
We do not necessarily hold that the approach taken by
the officers in Frye would be acceptable in this case. Each case
must be decided on its own facts.
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this is the case, it is questionable whether the cessation of the
demonstration altogether was narrowly tailored.
The Seventh Circuit encountered a similar situation in
Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005). In
Ovadal, the plaintiff, Ralph Ovadal, demonstrated against
homosexuality by holding up signs on pedestrian overpasses. Id.
at 533-34. Responding to complaints by drivers that the signs
were causing traffic problems, police officers eventually told
Ovadal that he was no longer allowed to display his signs on
pedestrian overpasses, citing the disorderly conduct statute.
Id. at 534. The Seventh Circuit determined there was a genuine
issue of material fact as to whether Ovadal’s First Amendment
rights had been violated. Id. at 537-38. The court found fact
issues as to whether the ban on Ovadal’s actions was content-
neutral, whether it was narrowly tailored, whether the city would
have banned all demonstrations on pedestrian overpasses
regardless of content, whether a rule that banned demonstrators
if their signs caused traffic problems could even be applied in a
content-neutral manner, and whether the ban was really just aimed
at Ovadal. Id.11
11
On remand, the district court in Ovadal held a bench
trial and found that the restriction was content-neutral and
satisfied strict scrutiny. Ovadal v. City of Madison, No. 04-C-
322-S, 2005 WL 3434402, at *1 (W.D. Wis. Dec. 13, 2005). The
Seventh Circuit affirmed the decision, Ovadal v. City of Madison,
469 F.3d 625, 631 (7th Cir. 2006), and Ovadal has filed a
petition for certiorari with the Supreme Court.
25
Ovadal is similar to the instant case in that there is
simply too much uncertainty about the motivations of the
governmental action to determine whether a First Amendment
violation took place. Here, as discussed above, the reason for
the police officers’ actions on February 12, 2005, is a fact
question. Further, Miles, the officer who threatened Plaintiffs
with arrest, had previously made comments indicating he did not
approve of Plaintiffs’ graphic signs. When combined with the
lack of undisputed evidence as to why Plaintiffs’ First Amendment
rights were restricted, there is a fact issue regarding whether
the officers were actually motivated by the content of
Plaintiffs’ demonstration, which prevents summary judgment on the
issue of whether the restriction was content-based or content-
neutral. Without knowing the motivation for the restriction, we
cannot determine which test to apply--strict scrutiny or a lesser
level of scrutiny. Summary judgment on this issue was, thus,
inappropriate, and we must reverse the district court’s decision
to grant Columbia’s motion for summary judgment; however, we will
affirm the district court’s decision to deny Plaintiffs’ motion
for summary judgment, as there are fact issues in this case.
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C. Other Relief
Finally, Plaintiffs requested, and were denied, declaratory
relief, injunctive relief, and attorneys’ fees. To the extent
Plaintiffs seek a declaration that their First Amendment rights
were violated by Columbia’s restriction of their demonstration on
February 12, 2005, we must reverse for the above-stated reasons.
If Plaintiffs are seeking a declaration that they may demonstrate
in Columbia in the future and injunctive relief to that effect,
we also reverse so that the district court may make this ruling
after determining whether Plaintiffs’ First Amendment rights are
actually being infringed.
As for attorneys’ fees, 42 U.S.C. § 1988 provides that
courts, in their discretion, may award attorneys’ fees to
prevailing parties in § 1983 cases. Because the prevailing party
is yet unknown in this case, we also reverse the district court’s
ruling on attorneys’ fees.
V. CONCLUSION
For the foregoing reasons, we REVERSE the order of the
district court to the extent it granted Columbia’s motion for
summary judgment, AFFIRM the order to the extent it denied
Plaintiffs’ motion for summary judgment, and REMAND for further
proceedings consistent with this opinion.
REVERSED in part, AFFIRMED in part, and REMANDED.
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